Case Update (3 Aug 2023): Kinfoussia v. Hamade; a domestic violence restraining order included custody provisions under the UCCJEA's temporary emergency jurisdiction, but that did not give the court modification jurisdiction

In an unpublished opinion, the California Court of Appeals, addressed a custody jurisdiction issue between California and France that arose in the context of a domestic violence protective order.

The parties are parents to one child, born in France in 2008. The parties' original French divorce judgment gave them joint parental authority and fixed the child's residence with the Mother in France, with Father having free access and accommodation rights, including in California where he resided. At some point prior to late 2015, the Mother's mental health had deteriorated, and she agreed with the child to entrust custody of the child to the Father in California. The following month, the parents filed a joint application with the French court to modify the custody terms, and fix the habitual residence of the child in the U.S., providing the Mother free access upon notice to the Father. They informed the French court that this was a change in the child's residence for an indefinite period of time, unless the child expressed a desire to return to France. The Mother brought the child to California, where the Father enrolled her in school. About six months later, the Mother appeared at a hearing in France on their joint application to modify custody, but the Father could not attend, and attempted, by written letter to the court, to give the Mother authority to act on his behalf. Because he did not attend, the French court dismissed the case. A few months later, the Mother filed a criminal complaint in France against the Father for child abduction. A few more months later, she traveled to LA to see the child, and the Father, who tracked the child while with the Mother by the child's GPS watch, noticed they were at LAX. The child called the Father from LAX, but her phone was taken from her by a man, purportedly one of three men with the Mother who were attempting to transport the child back to France. The Father contacted the airline, and the attempt was thwarted. The police recovered a passport that the Mother obtained by fraud, claiming the original one was lost.

A few days after this event, the Father sought a DVRO, asking for a stay-away order, and temporary sole legal and physical custody with a ne exeat to prevent the Mother from traveling with the child. The court granted the relief in a temporary DVRO. The order specified that it had jurisdiction to make a custody order under the UCCJEA and the Abduction Convention*. The Father ultimately secured a 5-year DVRO with the same provisions. The court advised the Father to seek a modification of the existing French order, as the DVRO was just a temporary order [although the court apparently advised the father to register and modify the order in California, which is incorrect based on the UCCJEA's continuing exclusive jurisdiction provisions]. Regardless, the Father didn't attempt to modify the French judgment, and apparently thought that, when the case was dismissed in France, the French court had divested itself of jurisdiction, leaving only the DVRO.

The Mother continually violated the DVRO by sending the child and Father various text messages. Further, the French authorities detained the Father and child on a few occasions based on the criminal warrant that came to exist from the Mother's criminal complaint. Ultimately, the French court, in 2020, dismissed the criminal suit. Not much later, the Father sought a renewal of the DVRO in California. It was at this time that the Mother started raising subject matter jurisdiction arguments. It appears a French attorney opined that the French court never relinquished its jurisdiction. The trial judge ultimately found it had jurisdiction to renew the DVRO for another five years in April 2022, including the custody provisions. Mother filed an appeal. In March 2023, the trial court entered a stipulated agreement of the parties, which included reference to the DVRO, therapeutic visits between Mother and child, and the statement: "i. The Court has jurisdiction over the minor child because no other state has assumed jurisdiction, and [California] is an appropriate forum; ii. The Country of habitual residence of the minor child is the United States of America."

Ultimately, the Court of Appeals noted that the California courts have only temporary emergency jurisdiction. France issued the initial custody order, and it did not cede its jurisdiction. France has continuing exclusive jurisdiction until California would become the child's home state, and, the French courts defer to California as a more convenient forum. Therefore, California cannot modify the existing French order (which was an error in statement by the trial judge when advising the Father at the DVRO hearing). You also cannot consent to custody jurisdiction, even though the parents did make certain statements in their stipulated agreement. *Finally, another misstatement by the trial judge: the court stated that it had jurisdiction over custody under the Hague Abduction Convention. This is patently false. That Convention does not determine custody jurisdiction (this is why there is a separate Convention called the Hague Child Protection Convention). As the appellate court stated, the UCCJEA is the exclusive means to establish child custody jurisdiction in the state of California.